时间：2024-09-21 17:35:50 来源：泸州新闻网

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The Supreme Court majority describes its holding last week in Counterman v. Coloradoas a vindication of the First Amendment and a principled defense of free speech. Indeed, influential civil libertarian organizations were quick to celebrate the decision. ACLU attorney Brian Hauss praised the court for guaranteeing that “inadvertently threatening speech cannot be criminalized” and for “provid[ing] essential breathing room for public debate.” Foundation for Individual Rights and Expression (FIRE) attorney Jay Diaz rejoiced that “fewer prosecutors will be able to criminalize speech tomorrow than was possible yesterday” and praised the majority for “ensur[ing] that Americans would not face prosecution for parody or political commentary.”

Based on these characterizations, one could be forgiven for thinking that the Countermancase involved controversial political advocacy, an ambiguous offhand remark, or uncivil name-calling. In fact, however, the case is about a relentless, six-year stalking campaign by a man determined to insert himself into a woman’s life without her consent. The woman at the heart of the case, C.W., was a thriving local musician until Billy Counterman became obsessed with her. Counterman targeted C.W. with thousands of unwanted messages, asking her questions about her personal life, insinuating that he was physically surveilling her, and telling her he wanted her to die. C.W. had no idea who Counterman was or what he looked like; she became increasingly anxious about performing live and connecting with her fans out of fear that he might be in the audience. She tried to ignore the messages, but when she discovered that Counterman had twice been arrested for threatening women with bodily harm (including threats to “put your head on a fuckin sidewalk and bash it in,” and to “rip your throat out on sight”), she contacted law enforcement. Counterman was eventually arrested and convicted of stalking, but not before C.W. had stopped performing, began varying her daily routes, and started carrying a gun.

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In many ways, C.W.’s experience was typical of that of many stalking victims: The stalking upended her career, her mental health, her relationships—in short, her entire life. What is rare about her case is that law enforcement actually took her report seriously, and that Counterman was actually convicted. In nearly half of all reported cases, police take no action at all and only make arrests in a tiny fraction. Given that more than half of all female homicide victims are stalked before they are killed, Counterman’s conviction may very well have saved C.W.’s life.

That potentially lifesaving outcome is now unavailable to other stalking victims because the Supreme Court has declared stalking to be protected by the First Amendment, overturning Counterman’s conviction and asking a lower court to reconsider it in light of its new standard that demands prosecutors show that stalkers consciously disregarded a serious risk that their messages would be perceived as threatening. The court ignores the reality that many stalkers fervently believe that their actions are or should be welcomed by their victims; indeed, the court’s holding means that the more delusional the stalker, the more the stalking is protected. In addition to preemptively insulating stalkers from criminal conviction as well as civil restraining orders, the holding elevates stalkers into free speech heroes. In doing so, the court has assured stalkers that they will not only be able to terrorize with impunity, but with acclaim.

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To be clear, the “freedom of speech” protected by the Countermanmajority and valorized by civil libertarian organizations is the freedom to engage in objectively terrifying conduct that leads victims to withdraw from their professions, censor their communications, and restrict their movements. Given that the majority of stalkers are male and the majority of stalking victims are female, the thrust of the opinion can be put more bluntly: The First Amendment does not protect “speech,” but men’sspeech at the expense of women’sspeech; men’s delusions at the expense of women’s lives.

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Stalking silences. The fear of constant surveillance and the threat of violence that could erupt at any moment make it impossible for victims of stalking to fully express themselves. They must weigh every interaction, every public appearance, every word against the possibility that their stalker is listening, watching, waiting. Can they continue in a high-profile career that keeps them on their stalker’s radar? Can they advertise a speaking engagement that reveals their physical location? Can they share a joyous family event that might trigger a delusional escalation?

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But in a case about stalking—in which a man’s terrifying, unwanted, repeated communications forced a woman to abandon the artistic expression she loved, buy a gun she didn’t want in order to try to protect herself, and eventually flee the state—Justice Elena Kagan’s majority opinion focused not on the life-threatening, objectively reasonable, statistically documented fear and silencing of stalking victims, but on the hypothetical fear of hypothetical speakers whose speech could hypothetically be mistaken for threats: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.”

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Tellingly, the majority offers no empirical evidence of this supposed “chilling effect” that must be counteracted above all else. That is likely because, as numerous scholars have observed, no such evidence exists. The average individual does not consult legal statutes and their enforcement before deciding how or if to speak. What is more, an exploration of stalking prosecutions would lead to the opposite conclusion: Stalking, like other abuses disproportionately committed by men against women, is among the most underreported and underprosecuted crimes. Long before the court’s decision in Counterman, abusers could already take heart that they could act with near impunity in the vast majority of cases. This certainly seems to have been true of Counterman himself, whose previous convictions for making violent threats against female family members clearly did not deter him from stalking C.W.

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Last year in Dobbs, Justice Kagan joined the liberal justices in dissent, decrying the conservative supermajority’s specious use of history and tradition to deny constitutional protections to women. The dissent pointedly observed that “ ‘people’ did not ratify the Fourteenth Amendment. Men did.” But the same is true for the First Amendment, and the failure of the Counterman majority—which includes the entire progressive wing of the court—to recognize the import of this will have tragic consequences. What the liberal justices concluded about Dobbsis no less true of Counterman:“one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

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